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08 September 2017

Fixing the date or fixing the election #nlpoli #cdnpoli

Arguably, Justice Gillian Butler’s decision in a six year old case on the special ballot provisions of the provincial election law is one of the most significant political events in recent years.

Butler ruled the special ballot rules are unconstitutional since they deny an individual’s right to vote under the Charter of Rights and Freedoms. Introduced in 2007 with unanimous support of all members of the House of Assembly, the special ballot rules allow people to vote at least four weeks before an election exists.

Among the first critics of the special ballot rules was Mark Watton. He represented the Canadian Civil Liberties Association pro bono as an intervener in the case Butler heard. In 2007, though, Watton wrote a letter to the editor of the Western Star and later published it on his now-defunct blog nottawa. SRBP reproduced it from the print edition.

The fight against the special ballot laws took four years to get to a court and another six for the case to end in a decision but the fight was worth it.

Most people likely haven’t read Watton’s letter and the fact it isn’t available online anymore means that people writing about the issue these days won't know any of the background to the story. To remedy that and to give Watton his due, here’s the letter in its entirety.

The provincial government might appeal the decision. Hopefully it won’t since, as Watton explained a decade ago, the law is unconstitutional. There is no reason to disagree with Butler’s conclusion. The only sensible task for justice minister Andrew Parsons and his colleagues is to introduce amendments to the especial ballot law in the fall sitting of the House.

[Originally published in the Western Star and at nottawa, Friday 14 September 2007]Fixing the date or fixing the election
On Oct. 9 and 10, voters in Newfoundland and Labrador and Ontario will cast ballots under new "fixed election date" regimes. For the first time, the date of each election has been known well in advance, set by legislated changes to each province's elections act.

While campaigning is officially underway in Ontario, the writ has yet to be issued in Newfoundland and Labrador. With the shortest required writ period in Canada at 21 days, candidates will have to wait until next week to officially hit the hustings. After all, the election, despite its predetermined date, has not officially begun.

Surprisingly, however, voting already has.

That's right. In an election which is not yet official, in which candidates can not yet legally be nominated, it is not only possible to obtain a ballot already, it's legal to cast it. Valid votes in an election not yet called have been cast since Aug. 20. In all other jurisdictions where mail-in ballots are allowed, such ballots are requested only after the writ has been issued. Manitoba is one exception, where voters may request such ballots before the writ, but as elsewhere will only receive them afterwards. Some provinces are subsequently required to provide these voters with a list of registered candidates when nominations are filed.

There is no reason why similar provisions could not have been incorporated in our Elections Act. No reason, except for a succession of partisan Chief Electoral Officers, and the unabashed self-interest of the current Members of the House of Assembly.

The rationale behind fixed election dates was to curb the advantage of incumbent governments using hastily called elections to pre-empty their opponents. In recent memory, Ontarians punished Premier David Peterson for attempting such a stunt in 1990, while in Newfoundland and Labrador, electors went to the polls three times (1993, 1996, and 1999) in a span of less than six years.

In Newfoundland and Labrador, the current Elections Act has replaced this perceived advantage for a governing party with a profound advantage for incumbent members of all party stripes. No wonder it was passed with little debate and virtually no opposition.

Similar to their quiet deal to continue the flow of their much maligned members' allowances through to the election, MHAs did not flinch when presented with an opportunity to use their name recognition and stuff the ballot boxes before any opponents could even register as candidates.

Ten years ago, in Libman v. Quebec, a unanimous Supreme Court of Canada stated: "Elections are fair and equitable only if all citizens are reasonably informed of all the possible choices and if parties and candidates are given a reasonable opportunity to present their positions..."

More recently, in Figueroa v. Canada, they ruled that provisions of Canada's Elections Act which effectively ensured "that voters are better informed of the political platform of some candidates than they are of others" violated s.3 of the Charter and struck them down.

It is hard to imagine a greater democratic injustice than rules which permit incumbent candidates to campaign (and do so free from electoral spending scrutiny) and collect votes while their potential opponents cannot even register.

This ill-conceived and poorly-drafted legislation raises many issues of contradiction and disparity. It allows some individuals to receive votes under a party name while others can only receive votes under the name of a candidate, an impossibility given that individuals are not considered candidates until they meet the criteria - several weeks later.

In Haig v. Canada, the Supreme Court ruled that the Charter requires electoral laws to "grant every citizen of this country the right to play a meaningful role in the selection of elected representatives", an impossibility in a province without any means of preventing a determinative number of ballots being cast in a district before candidates are even nominated.

In 2000, the world was stunned as the fate of its only superpower was decided by hanging chads, inoperable voting machines, and a myriad of electoral inconsistencies. A handful of Florida counties reminded the outside world just how fragile democracy could be. The sad truth is we only cared about the flawed process because the result was close. Had either candidate won by a large margin, the inadequacies of America's electoral system would have been swept under the rug for another four years.

The "fixed" election results of 2007 in Newfoundland and Labrador likely won't be as close as those we witnessed in Florida in 2000, nor as consequential. But there's no reason to be any less concerned.